Understanding the Senpai-Kohai Dynamic: Cultural relationships and key documents in e-Discovery

Author: Glenn Yamada

A young employee walks into this manager’s office and says, “I think the project might do better if we went in this direction.”

In the U.S., a manager may view this as taking initiative and even make the suggested change. In Japan, a junior (known as kohai) would rarely approach a senior (senpai) so directly. If they were to make a suggestion, it would either be subtle or made through someone more senior (but closer in hierarchy). Why?

Because of Japan’s culturally rooted senpai-kohai system which permeates nearly every aspect of society.

In e-Discovery, reviewers are often asked to analyze a document on its “four corners”, meaning they should not consider external material to guide their decision-making. Yet, organization communications steeped in cultural systems like the senpai-kohai relationship can seldom be fully appreciated without looking at a number of exchanges. Important questions like, “Who is the kohai and senpai?” or “How does this kohai typically raise concerns to his/her senpai?” can only be answered after observing a series of interactions. In other words, Japanese document review is highly contextual.

Subsequently, to understand Key Documents properly, phrases in emails and texts need to be understood in the context of the senpai-kohai relationship.

The senpai-kohai relationship is a hierarchy based on seniority (not just age, but by experience and tenure). Where a senpai is expected to mentor, protect and guide their kohai, in return, a kohai is expected to show respect, loyalty and deference toward their senpai.

This institutional relationship is reflected in seating arrangements, the manner in which people communicate with one another and behavior as well. As a kohai you would avoid doing anything that would disgrace or discredit your senpai.

Who’s the Boss?

In eDiscovery, reviewers are often asked to focus on the search for direct and clear statements in key documents that can either help or hinder cases. However, in Japanese companies open candor can’t always be expected. While people may be frank with subordinates, mid-level managers are likely to temper statements or emails to higher-ups to maintain the senpai-kohai relationship. In addition, the senpai-kohai construct can also exist between employees or managers of the same rank or title. The use of honorifics (keigo) and general deference in tone are typical indicators of when a kohai is speaking to a senpai.

Kohais might mention concerns subtly or omit them entirely out of respect to the senpai. As a result, what would qualify as a “key document” in Japanese reviews might be quite different from what is expected in U.S. matters.

For example, an employee in the U.S. may raise an anti-trust concern in the following manner to their superior, “We might have anti-trust issues with this pricing model. Should we talk to legal?” In contrast, a Japanese worker in the same position would be less direct and state the same concern as, “Perhaps there are previous examples and protocols we can look at to further develop the pricing model. But I defer to your judgement.”

Here, there is no explicit mention of key terms such as “anti-trust” or “legal” to immediately raise red flags. However, a Japanese-fluent reviewer familiar with the senpai-kohai dynamic would understand this statement could have been made out of anti-trust concerns.

What Does It Mean for You?

In e-discovery, key documents can easily turn the direction of a case and finding them, where they exist, is crucial. Yet, without understanding the cultural context within which communications are made, such documents can easily be overlooked.

This is particularly important for cases or investigations involving internal Japanese company exchanges, where the senpai-kohai framework can obscure the importance of key comments, actions or decisions. It’s important to note that senpais and kohais can be of the same rank, meaning a manager may show deference to another manager with an identical title; something not usually observed in American companies. This respectful tone can result in what would otherwise appear to be benign statements that may in fact indicate key admissions or pivotal acts that need to be read within their cultural context

This underscores the reality that it is not enough to have an attorney who is fluent in the language. Equally and critically important is an eDiscovery team that is knowledgeable about the cultural context of documents. Such as those who recognize when a kohai is showing more resistance to an idea than might be obvious—which could lead to additional avenues of exploration of the documents, or lines of questioning in depositions.

At Hilgers Graben, our team of Japanese proficient attorneys understand the cultural institutions which shape communications within Japanese companies and organizations. They possess the background necessary to know what to look for and where when it comes to Japanese documents to ensure key documents are never missed.

Glenn Yamada, Counsel; Foreign Language Review Services

Glenn Yamada is a seasoned e-discovery attorney at Hilgers, where he brings over a decade of expertise working in high-stakes, complex litigations. Follow him on LinkedIn here.